Mining in the Philippines - Concerns and Conflicts

which requires that consent be obtained ‘in accordance with the customary laws and practices’ and
‘free from any external manipulation’.
Cases similar to those recounted to the FFT, where mining companies engineered consent, have been
documented all over the country. 77
3.5.1. Lack of independent monitoring & expertise provision & the NCIP
The National Commission on Indigenous Peoples (NCIP) is the body mandated to ‘protect and
promote the interest and well-being of the ICCs/IPs’. It is responsible for ensuring adherence to the
implementing rules and regulations of the IPRA. The perception among indigenous peoples, based on
their experience of the FPIC process to date, is that the NCIP is failing in its mandate and has in many
cases sided with mining companies. Some blame this on a lack of funding for the NCIP, others on its
lack of independence from a political agenda that is strongly pro-mining; others still attribute it to
corruption and bribes by mining companies.
Given this perception of the NCIP’s bias against indigenous peoples, there is a need to address its lack
of credibility and restore confidence in legal processes. This might take the form of a credible
independent body to certify that consent has been given in line with the IPRA’s legal guidelines. The
Philippine Commission on Human Rights may be able to play an important role in certifying
indigenous peoples’ consent. Where methods used to obtain consent breach the IPRA guidelines,
legal remedies should be accessible to the affected communities. It should be noted that communities
repeat their concern that the finances and expertise available to companies and the inability of
communities to ‘afford’ the lawyers and costs of access to justice, is a significant barrier to just
outcomes. The team believes that given the scale of the violations, the office of the Ombudsman
should be strengthened to deal with violations of indigenous peoples’ rights. The model implemented
in Venezuela, of a post of Special Ombudsman on Indigenous Issues, should be considered. A
credible selection process and the employment of staff sympathetic to, and knowledgeable about,
indigenous cultures is essential for this office to be credible in the eyes of indigenous peoples.
There is also a need to mandate an independent body to provide scientific and legal assistance to
indigenous peoples during the FPIC process. Such a body is essential to ensure that indigenous
peoples are in a position to consider giving their informed consent. There is a need to provide
independent assessments and explanations of ESIAs. This and other information should be provided
as part of the FPIC process in a language and format understandable by indigenous peoples, to
ensure that they are fully informed of the potential impacts. 78
3.5.2. Weaknesses in the Law
There are a number of weaknesses in the current IPRA legislation and its Implementing Rules and
Regulations (IRR), as currently revised, in relation to FPIC. Two major problems are:
• the short timeframe allotted for consensus building in the Implementing Rules and
Regulations;
• the current interpretation of Section 56 of the IPRA which seeks to deny indigenous peoples
the right to FPIC for mining operations that existed before the enactment of the IPRA.
The government, in the interest of speeding up permit applications and with the approval of the
NCIP, has implemented new guidelines for the FPIC process. Rather than addressing existing
concerns, they focus on speeding up the FPIC process and may even reduce protections that currently
exist.
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